The Petitioner, a business providing technology job portal and technology professional services, seeks to employ the Beneficiary as a computer systems analyst. It requests classification of the Beneficiary as a member of the professions holding an advanced degree under the second preference immigrant classification. See Immigration and Nationality Act (the Act), section 203(b)(2), 8 U.S.C. § 1153(b)(2). This employment-based immigrant classification allows a U.S. employer to sponsor a professional with an advanced degree for lawful permanent resident status.
The Director, Nebraska Service Center, denied the petition. The Director determined that the record did not establish the Petitioner's ability to pay the Beneficiary the proffered wage from the visa petition's priority date forward.
The matter is now before us on appeal. The Petitioner contends that the Director erred in concluding that the record does not establish its ability to pay the proffered wage and submits additional evidence in support of this claim. Upon de novo review, we will dismiss the appeal.
Law and Analysis
Employment-based immigration is generally a three-step process. First, an employer must obtain an approved labor certification from the U.S. Department of Labor (DOL). See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). Next, U.S. Citizenship and Immigration Services (USCIS) must approve an immigrant visa petition. See section 204 of the Act, 8 U.S.C. § 1154. Finally, the foreign national must apply for an immigrant visa abroad or, if eligible, adjustment of status in the United States. See section 245 ofthe Act, 8 U.S.C. § 1255.
As required by statute, an ETA Form 9089, Application for Permanent Employment Certification (labor certification), approved by the DOL, accompanies the instant petition. By approving the labor certification, the DOL certified that there are insufficient U.S. workers who are able, willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The DOL also cet1ified that the employment of a foreign national in the position will not adversely a±Tect the wages and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) ofthe Act.
Matter ofII-.!- Inc.
In these visa petitiOn proceedings, USCIS determines whether a foreign national meets the job requirements specified on a labor certification and the requirements of the requested immigrant classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the facts stated in it are true and the foreign national is eligible for the requested preference classification); see also, e.g., Tongatapu Woodcrqft Haw., Ltd. v. Feldman, 736 F. 2d 1305, 1309 (9th Cir. 1984); Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USCIS has authority to make preference classification decisions).
The priority date of a petition is the date the DOL accepted the labor certification for processing. See 8 C.F.R. § 204.5(d). The priority date is used to calculate when the beneficiary of the visa petition is eligible to adjust his or her status to that of a lawful permanent resident. See 8 C.F.R. § 245.1(g). A petitioner must establish the elements for the approval of the petition at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. §§ 204.5(g)(2), 103.2(b)(l), (12); see also Matter of Wing's Tea House. 16 I&N Dec. 158, 159 (Acting Reg'l Comm'r 1977); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971 ).
In the instant case, the priority date is December 8, 2014. Therefore, the Petitioner must establish that all eligibility requirements for the petition have been satisfied from December 8, 2014, and continuing through the present.
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part:
Ability ofprospective employer to pay wage. .Any petitiOn filed by or for an employment-based immigrant which requires an offer of employment must be accompanied by evidence that the prospective United States employer has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence. Evidence o f this ability shall be either in the form o f copies o f annual reports, federal tax returns, or audited financial statements.
Apetitionermustestablishthatitsjoboffertothebeneficiaryisarealisticone. Becausethefilingofa labor certification application establishes a priority date for any immigrant petition later based on the labor certification, a petitioner mu~t establish that the job offer was realistic as of the priority date and that the offer remains realistic for each year thereafter, until the beneficiary obtains lawful permanent residence. A petitioner's ability to pay the proffered wage is an essential element in evaluating whether ajob offer is realistic. See Matter o_[Great Wall, 16 I&N Dec. 142 (Acting Reg'l Comm'r 1977); see also 8 C.F.R. § 204.5(g)(2).
To determine a petitioner's ability to pay the proffered wage, USCIS first examines whether the petitioner was employing the beneficiary as of the date on which the labor certification was accepted for processing by DOL and whether it continues to do so. If the petitioner documents that it has employed the beneficiary at a salary equal to or greater than the proffered wage, that evidence may p. 3 Matter ofIl-J- Inc. be considered prima facie proof of the petitioner's ability to pay. If the pet1t10ner does not demonstrate that it employed and paid the beneficiary at an amount at least equal to the proflered wage during the required period, USCIS then examines the net income figure ref1ected on the petitioner's federal income tax returns, without consideration of depreciation or other expenses. the petitioner's net income during the required time period does not equal or exceed the proffered wage, or when added to any wages paid to the beneficiary does not equal or exceed the proffered wage, USCIS reviews the petitioner's net current assets.
In cases where neither a petitioner's net income nor its net current assets establish its ability to pay the proffered wage during the required period, users may also consider the overall magnitude of the petitioner's business activities. Matter o.fSonegawa, 12 I&N Dec. 612 (Reg'l Comm'r 1967). In assessing the totality of a petitioner's circumstances, users may consider such factors as the number of years it has been in business, its record of growth, the number of individuals it employs, abnormal business expenditures or losses, its reputation within its industry, whether the beneficiary is replacing a former employee or an outsourced service, or any other evidence it deems relevant.
A petitioner must demonstrate its continuing ability to pay the proffered wage ofeach petition it files. 8 C.F.R. § 204.5(g)(2). Therefore, the instant Petitioner must demonstrate its continuing ability to pay the combined proffered wages of the instant Beneficiary and the beneficiaries of its other petitions that remained pending after the instant petition's priority date. The Petitioner must establish its ability to pay the combined proffered wages from the instant petition's priority date until the other beneficiaries obtained lm.vful permanent residence, or until the petitions \Vere denied, withdrawn, or revoked. See Patel v. Johnson, 2 F. Supp. 3d 108, 124 (D. Mass. 2014) (upholding our denial of a petition where a petitioner did not demonstrate its ability to pay multiple beneficiaries).
In the present case, the labor certification states that the proflered wage is $79,643 per year. The record does not reflect that the Petitioner paid the Beneficiary the proffered wage in 2014 or in 2015. The Petitioner has submitted the Beneficiary's IRS Forms W-2, Wage and Tax Statements, for 2014 and 2015, which reflect that, in 2014, the Beneficiary earned $17,499.99 ($62, 143.01 less than the proffered wage) and, in 2015, $67,499.99 ($1 2,143.01 less than the proffered wage). has not demonstrated its ability to pay the proffered wage based on the wages it paid the Beneficiary. Turning to a consideration of the Petitioner's ability to pay based on the net income and net current assets in its IRS Forms 1120, U.S. Corporation Income Tax Returns, for 2014 and 2015, we find the 3 Petitioner to have reported $100,821 in net income and $0 in net current assets in 2014. return reflects $76,138 in net income and $144,484 in net current assets.
Its 2015 tax
Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See, e.g., River St. Donuts, LLC v. lVapolitano, 558 F.3d Ill, I18 (Ist Cir. 2009); Tongatapu, 736 F.2d at 1309; Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. CaL 2015); Rivzi v. Dep't ofHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 20 14), aff'd, -- Fed. Appx. --, 20 15 WL 5'Z 11445, *I (5th Cir. Sept. 30, 20 15). petition by the Petitioner. 3
Net current assets are the difference between a petitioner's current assets and current liabilities. A corporation's year-The approval ofthe Beneficiary's H-IB nonimmigrant visa was revoked on April28, 2016, due to withdrawal ofthe Therefore, the Petitioner
If
Matter ofll-J- Inc.
We note that the assets and liabilities listed on Schedule L at the end o f 2014 should generally match the assets and liabilities listed on Schedule L at the beginning of 2015. In this case, they do not. The Petitioner's Schedule L for 2014 shows $3257 in total assets, $0 in total liabilities, and $101,855 in shareholders' equity at the end of the tax year. However, the Petitioner's Schedule L for 2015 shows 4 $105,169 in total assets,
$0 in total liabilities and $105,169 in shareholders' e q u i t l at the beginning o f the tax year. Further, the Petitioner's 2015 Schedule L reflects $30,000 in accounts payable at the end of the tax year. The petitioner's tax returns were prepared pursuant to the cash method of accounting, in which revenue is recognized when it is received, and expenses are recognized when they are paid. Generally, a cash basis taxpayer has no accounts payable. The record does not establish why the Petitioner's 2015 Schedule L balance sheet shows accounts payable. incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Matter ofHo, 19 l&N Dec. 582, 591-92 (BIA 1988). Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Id. Due to these unresolved inconsistencies, the Petitioner's tax returns are not credible evidence ofthe Petitioner's net income and net current assets.
Even i f the Petitioner had established that its tax returns were credible, the Petitioner has not established its ability to pay the proffered wage. While the Petitioner's net income in 2014 and 2015 is suflicient to cover the differences between the proffered wage of $79,643 and the actual wages paid to the Beneficiary in both years, USCIS databases reflect that the Petitioner also had seven other Form 1- 140 petitions pending or approved at the time it filed the instant visa petition. Therefore, to establish its ability to pay in 2014 and 2015, the Petitioner must demonstrate that its net income or net current assets were also sufficient to cover the proffered wages of these additional beneficiaries.
The record contains a chart submitted by the Petitioner that lists the seven beneficiaries for whom Forms 1-140 had been approved or were pending as of the date on which it filed the instant visa petition. The chart reports the following information regarding the proffered wage and actual wages paid to these individuals (identified by the receipt numbers for their Forms l-140) in 2014 and 2015: end current assets are shown on Schedule L, lines I through 6 ofthe Form 1120, and include cash-on-hand. Its year-end current liabilities are shown on lines 16 through 18 of the tax return. In this case, lines I through 6, and 16 through 18 are blank on the Petitioner's 2014 Form 1120. 4
The 2015 Schedule L shows $101,912 in cash at the beginning of the tax year that was not reflected on the 2014 Schedule L. 5
The 2015 Schedule L shows a $3314 adjustment to shareholder's equity at the beginning of the tax year. The record contains an unaudited balance sheet for the Petitioner dated December 7, 2015. It was prepared pursuant to the accrual method of accounting, in which revenue is recognized when it is earned, and expenses are recognized when they are incurred. The regulation at 8 C.F.R. § 204.5(g)(2) makes clear that where a petitioner relies on financial statements to demonstrate its ability to pay the proffered wage, those financial statements must be audited. Unaudited financial statements are the representations of management. The unsupported representations of management are not credible evidence and are insufficient to demonstrate the ability to pay the proffered wage.Claims not backed by documents
It is
Receipt#
Proffered Wages
$108,534.00
$ 79,643.00
$90,481 .00
$126,630.00
$ 79,643.00
$ 76,877.00
$108,534.00
2014 Wages
$88,177.61
$58,250.02
$78,070.20
$83,399.97
$52,500.02
$50,000.00
No wages paid
2015 Wages
$100,359.38
$ 95,315.77
$97,007.20
$ 95,128.00
$104.390.66
$40,745.19
No wages paid
In his decision, the Director, relying on the above chart, found the Petitioner's combined proffered wage obligation in 2014 to be $534,574 (including the Beneficiary and five of the beneficiaries listed above ) and that it had paid wages in the amount of$377,897.81, leaving a deficit of$156,676.19, which could not be covered by its net income of $100,821. The Director also determined that the Petitioner could not pay the $156,676.19 difference out of its net current assets, which its 2014 tax return had reported as $0. Accordingly, he concluded that the Petitioner had not established a continuing ability to pay the proffered wage from the instant visa petition's December 8, 2014, priority date, and denied the visa petition.
On appeal, the Petitioner contends that the Director miscalculated its proffered wage obligation in 2014 by not prorating the proffered wages for the above beneficiaries from their respective priority dates. It asserts that, if properly computed, its combined proffered wage obligation for 2014 totals approximately $95,233, less than the combined actual (annual) wages paid to these individuals and less than its (annual) net income of $100,821. However, while we may consider prorating a proffered wage in determining a petitioner's ability to pay the proffered wage, we will do so only if the record provides evidence of net income or payment of actual wages specifically covering the portion of the year that occurred after the controlling priority date (and only that period), e.g., monthly income statements or pay stubs for the affected beneficiaries. Here, the Petitioner has not submitted such evidence. The Petitioner has asked us to prorate the proffered wages, but has not offered corresponding proof of wages actually paid to the beneficiaries during that prorated period, or proof of income actually earned during that period. Moreover, even if we were to prorate the proffered wages for the Beneficiary and those beneficiaries whose priority dates preceded that of the Of the seven visa petitions listed, five have priority dates that predate that of the instant visa petition and will, therefore, be considered in determining the Petitioner's ability to pay in 20 I4. Two petitions 1 and have subsequent priority dates (January 16, 2015, and January 23, 2015) and will be factored into our ability to pay analysis for 2015 .
Matter o f11-J- Inc. instant visa petition, the record, as discussed below, would still not establish the Petitioner's ability to pay in 2015. We also note that the Petitioner asserts on appeal that as one of the beneficiaries listed on the above chart has acquired lawful permanent residence, his proffered wage should not be a factor in determining its ability to pay. In fact, USCIS records reflect that two of the individuals for whom the Petitioner's filed Form 1-140 petitions became lawful permanent residents in 2016. a petitioner's proffered wage obligation ends only after the date on which a beneficiary has obtained lawful permanent resident status. As a result, the adjustment of these individuals in 2016 does not relieve the Petitioner of its proffered wage obligations regarding the beneficiaries in prior years.
Therefore, based on the evidence of record, we find that, in 2014, the proffered wages for the Beneficiary and the five beneficiaries previously noted totaled $564,574, and that the actual wages paid them by the Petitioner totaled $377,897.81, a difference of$186,676.19, which is not covered by the net income or net current assets reported in the Petitioner's 2014 tax return.
With regard to the Petitioner's ability to pay in 2015, which was not considered by the Director, the above chart reflects that the Petitioner paid three of the listed beneficiaries in excess of the proffered wage and their earnings will not, therefore, figure in our analysis. 1°For the five beneficiaries who were not paid in excess of their proffered wages, the difference between their actual wages of $303,732.56 and their combined proffered wages of$500,218 is $196,485.44, which, again, exceeds the $76,138 in net income and $144,484 in net current assets reported in the Petitioner's 2015 tax return. Accordingly, the record also does not demonstrate the Petitioner's ability to pay the proffered wage in 2015 based on its net income or net current assets.
Since neither the Petitioner's net income nor its net current assets establish its ability to pay in this matter, we will consider whether, pursuant to Sonegawa, the evidence of record is sufficient to demonstrate its ability to pay based on the overall magnitude of its business activities.
In Sonegawa, the petitioner had been in business for over 11 years and routinely earned'a gross annual income of about $100,000. During the year in which the visa petition was filed, the petitioner changed business locations and Jaid rent on both the old and new locations for five months. There were large moving costs and also a period of time when the petitioner was unable to do regular business. Nevertheless, the Regional Commissioner determined that the petitioner's prospects for a resumption of successful business operations were well established. The petitioner was a fashion designer whose work had been featured in Time and Look magazines, and whose clients included The beneficiary of adjusted status on March 9, 2016; the beneficiary of adjusted status on AprilS, 2016. Where some beneficiaries have been paid amounts in excess of their proffered wages, we will not combine the wages of all multiple beneficiaries in calculating the total actual wages paid by a petitioner. Monies paid in excess of a proffered wage to one beneficiary may not be used to offset underpayment to another.
The Director indicated this total as $534,574.
However, as already indicated,
Miss Universe, movie actresses, and society matrons, as well as women who appeared on lists of the best-dressed women in California. The petitioner also lectured on fashion design at design and fashion shows throughout the United States and at colleges and universities in California. The Regional Commissioner's determination in Sonegawa was based in part on the petitioner's sound business reputation and outstanding reputation as a couturiere. Matter ofSonegawa, 12 I&N Dec. at 612-615.
As in Sonegawa, we may, in our discretion, consider evidence relevant to a petitioner's financial ability that falls outside its net income and net current assets, including such factors as the number of years a petitioner has been doing business, the growth of its business, the size of its workforce, uncharacteristic business expenditures or losses, its reputation within its industry, or any other evidence that we deem relevant to the petitioner's ability to pay the proffered wage.
In the present case, the record does not contain the evidence necessary to establish that, despite the Petitioner's insufficient net income and net current assets, the totality of its circumstances demonstrate its ability to pay. Although the record reflects that the Petitioner has been in business since 2006, no evidence demonstrates that, since its founding, the Petitioner has experienced consistent growth in its operations_or its income since its incorporation. Neither does the record establish the Petitioner as a leader in its industry.
While the Petitioner's 2014 and 2015 tax returns reflect an increase in its gross income, from $2,811,962 to $3,706,814, they are insufficient to establish a consistent pattern of financial growth 'over its 10-year history. We also note the Petitioner's claims that its web site is "probably the first and only job portal," that over 3,000 clients actively use its website on a daily basis to find technology professionals, and that at least 20,000 applicants also visit the site daily. However, the record contains no evidence in support of these claims. A petitioner cannot meet its burden of proof simply by claiming a fact to be true, without supporting documentary evidence. See Matter ofSo.ffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter o(Treasure Craft o.fCal. , 14 I&N Dec. 190 (Reg'l Comm'r 1972)); see also Matter o.fChawathe, 25 I&N Dec. 369 (AAO 2010). A petitioner must support assertions with relevant, probative, and credible evidence. Chawathe, at 369. Therefore, the record on appeal also does not establish that the overall magnitude of the Petitioner's business activities provide it with the ability to pay the Beneficiary the proffered wage.
For the reasons already discussed, the record does not establish that the Petitioner's ability to pay the Beneficiary the proffered wage from the December 18,2014, priority date forward. Accordingly, we will dismiss the appeal on this basis.
Conclusion
In the present case, the Petitioner has not established its continuing ability to pay the proffered wage from the priority date. p. 8 Matter of11-.J- Inc.
In visa petition proceedings, it is a petitioner's burden to establish eligibility for the immigration benefitsought. Section291oftheAct,8U.S.C.§1361;Matter(~fOtiende,26I&NDec.127,128 (BIA 2013). Here that burden has not been met.
ORDER: The appeal is dismissed.
Cite as Matter of11-J- Inc., ID# 07903 (AAO Jan. 5, 2017)